1. This is an anneal filed under Section 116A of the Representation of the People Act against the judgment of Election Tribunal, Warangal in Election O P. No. 2 of 1962 on its file. The short facts necessary for the disposal of this appeal are as follows:
2. For the general elections to the Legislative. Assembly of Andhra Pradesh, from Buggaram constituency, A. Mohan Reddy and A. Narayana Reddy contested. On 23-2-1962 the poll took place, and OR 26-2-1962 Narayana Reddy was declared elected by a majority of 314 votes, he having secured 20,814 votes as against his rival who secured 20,500 votes. The validity of this election was questioned by Mohan Reddy before the Tribunal on several, grounds, which need not be mentioned in detail. Suffice it to say that he complained of irregularities in counting of votes, inter alia that a uniform principle was not followed in declaring doubtful votes as invalid with the result that a large number of votes cast in favour of the petitioner was declared invalid, while votes which ought to have been declared invalid were counted in favour of the respondent. It was also alleged that by reason of the counting having taken place continuously for over two days, the counting Officers got fatigued on 25-2-1962, and committed quite a number of mistakes in counting, that they announced that the respondent got 368 votes, and the petitioner got 162 votes, while the fact was otherwise, and that the mistake was rectified when it was pointed out, and; that the petitioner was allowed to have only nine counting agents, though the votes were counted on sixteen tables.
He alleged that (1) even though a major portion of the mark of a voter on the ballot paper was engrossed within the space allotted to the petitioner, a number of such ballot papers were declared invalid, and (2) where by reason of the ballot paper-not being folded as per the instructions, the engrossing which was done with wet ink in favour of the petitioner invariably left a re-print on the counter-foil in the same fold, and such papers were declared invalid in an arbitrary manner, and that if a uniform principle were applied in the matter of rejection of votes, as many as 2,400 votes would not have been rejected. On these grounds he prayed that the election of the respondent may be declared as void, that the votes or the ballot papers may be ordered to be recounted before the Tribunal, and the petitioner may be declared elected, or, if the Tribunal came to the conclusion that the respondent committed corrupt practices, the entire election may be quashed.
3. The application was opposed by the respondent who denied the several allegations. He contended that there were a large number of invalid votes, that the returning Officer had followed Rules 50 to 57 of the Conduct of Election Rules, and before rejecting any ballot paper he took care to see that the counting agent of each party was allowed to be present, that neither the petitioner nor his agent raised any protest against such rejection, and that in the absence of any such protest, either oral or written, the petitioner shall not be permitted to raise such a plea. The returning Officer correctly and validly rejected the votes as invalid, and the allegation that the votes were rejected to the detriment of the petitioner in the manner alleged was incorrect. It was contended that as the system of marking votes was a new one and as several of the voters were illiterate, a good number of votes had to be declared invalid. There was no partiality by any member of the staff in invalidating any ballot paper, as the duty of giving reasonable opportunity for inspection of the doubtful ballot papers was cast not on them but upon the returning officer, who rejected them in accordance with the Rules.
4. On these contentions the Election Tribunal framed the relevant issues. It found all the material issues against the petitioner, and dismissed the petition. In respect of the contention regarding wrong rejection and errors in counting of the votes, the Tribunal held that the petitioner failed to prove them, and that the prayer in the petition for recount of the votes could not be allowed.
5. Sri Ramachandra Reddy, the learned counsel on behalf of the petitioner-appellant, attacked this order on the ground that scrutiny of votes should have been granted by the Tribunal and did not press the other grounds taken before it. He contended (1) that the scrutiny of the rejected voles by the Tribunal is a matter of right and the Tribunal was bound to examine them when there was a complaint made in that respect by the petitioner; and (2) that on the facts of the case the Tribunal should have scrutinised the rejected ballot papers, and determined whether they were rejected according to the Rules.
6. For appreciating the validity of these contentions, it is necessary to refer to the relevant provisions of the Representation of the People Act, 43 of 1951 (hereinafter called 'the Act'), and the Conduct of Election Rules, 1961 (hereinafter referred to as 'the Rules'). Under Section 92 of the Act, the 'Tribunal is given the powers vested in a court under the Code of Civil Procedure for trying a suit in respect of the following among other matters; (1) discovery and inspection, and (2) compelling production of documents. According to Section 98, at the conclusion of the trial of an election petition, the Tribunal shall make an order
(a) dismissing the election petition; or,
(b) declaring the election of all or any of the returned candidates to be void; or,
(c) declaring the election of all or any of the returned candidates to be void, and the petitioner or any other candidate to have been duly elected.
7. Section 100 enumerates the grounds on which the election can be declared void as follows:
'(1) Subject to the provisions of Sub-section (2) if the Tribunal is of opinion --
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or,
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules of orders made under this Act, the Tribunal shall declare the election of the returned candidate to be void.'
8. Part V of the Rules is entitled 'Counting of Votes in Parliamentary and Assembly Constituencies', and Rule 56 for which the marginal note is 'Scrutiny and Rejection of Ballot Papers', reads 'thus:
'(1) The ballot papers taken out of each ballot box shall be arranged in convenient bundles and scrutinised.
(2) The returning officer shall reject a ballot paper--
(c) if votes are given on it in favour of more than one candidate, or
(d) if the mark indicating the vote thereon is placed in such manner as to make it doubtful to which candidate the vote has been given, or
(3) Before rejecting any ballot paper under Sub-rule (2), the returning officer shall allow each counting agent present a reasonable opportunity to inspect the ballot paper but shall not allow him to handle it or any other ballot paper.
(4) The returning officer shall record on every ballot paper which he rejects the letter 'R' and the grounds of rejection in abbreviated form either in his own hand or by means of a rubber stamp.
(5) All ballot papers rejected under this rule shall be bundled together.'
Rule 57 relating to the counting of votes provides as follows:
'(1) Every ballot paper which is not rejected under Rule 56 shall be counted as one valid vote;
Provided that no cover containing tendered ballot papers shall be opened and no such paper shall be counted.
(2) After the counting of all ballot papers contained in all the ballot boxes used at a polling station has been completed, the returning officer shall make the entries in a result sheet in Form 20 and announce the particulars.
(3) The valid ballot papers shall thereafter be bundled together and kept along with the bundle of rejected ballot papers in a separate packet which shall be sealed and on which shall be recorded the following particulars, namely:
Rule 63 provides for recount of votes and stales:
(1) After the completion of the counting, the returning officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the same.
(2) After such announcement has been made, a candidate, or, in his absence, his election agent may apply in writing to the returning Officer for a recount of all or any of the ballot papers already counted stating the grounds on which he demands such recount.
(3) On such an application being made the returning officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable.
(4) Every decision of the returning officer under Sub-rule (3) shall be in writing and contain the reasons therefor.
(5) If the returning Officer decides under Sub-rule (3) to allow an application either in whole or in part, he shall--
(a) count the ballot papers again in accordance with his decision;
(b) amend the result sheet in Form 20 to the extent necessary after such re-count; and
(c) announce the amendments so made by him.
(6) After the total number of votes polled by each candidate has been announced under Sub-rule (1) or Sub-rule (5), the returning officer shall complete and sign the result sheet in Form 20 and no application for a re-count shall be entertained thereafter;
Provided that no step under this sub-rule shall be taken on tile completion of the counting until the candidates and election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by Sub-rule (2)'.
The effect of these provisions may be summed up thus:
(9) The duty of scrutinising and rejection of invalid ballot papers is cast upon the returning officer. He is bound to reject a ballot paper if the vote is marked or given on it in favour of more than one candidate, or the mark indicating the vote thereon is placed in such a manner as to make it doubtful to which candidate the vote is given. But before a ballot paper is rejected, the returning officer shall allow each counting agent a reasonable opportunity to inspect the ballot paper, but shall not allow him to handle it, or any other ballot paper. The returning Officer shall record on every ballot paper which is rejected the letter 'R' and the grounds of his rejection in his own hand or by means of a rubber stamp. The object of giving a reasonable opportunity to the counting agent to inspect the ballot paper is to enable him to state whether it has to be accepted or rejected in determining which candidate secured the majority of lawful votes. It is only thereafter that the returning officer shall, if he is of opinion that it is invalid give his reasons and reject the vote, and bundle up all the rejected votes.
10. The votes not rejected shall then be taken up for counting. Counting according to the scheme of the Rules, therefore, means counting of valid votes, but does not include the scrutiny of ballot papers. After the returning officer records the result of the counting of votes in Form 20, and announces the number of voles polled by each candidate a candidate or his election agent is empowered to apply to him in writing for a re-count, stating his grounds for the request. The returning officer may reject that request, or grant it in whole or in part, and if he decides to have a re-count, he shall count the ballot papers as per his decision, and make the necessary amendments in Form 20 in the number of votes secured as a result of the re-count, and announce the amendments. The Rules do not state that an objection to the rejection of a vote should be in writing, though it enacts that a request for recount of votes should be in writing, and that the reasons of the returning officer for rejecting a ballot paper, and for refusing or granting a re-count shall be in writing. Both the Act as well as the Rules are silent as to whether the granting of the request for scrutiny of the rejected ballot papers, or recount of the valid ballot papers is within the jurisdiction of an Election Tribunal.
Section 100 enacts that an election can be declared void if the Tribunal is of the opinion that the result of the election of a returned candidate has been materially affected by the improper reception or improper rejection of any vote, or the reception of any vote which is void, or by any non-compliance with the Constitution or the Act and the Rules. It is clear that the Election Tribunal is under a duty to determine if there had been any improper reception of votes either in favour of a particular candidate or against him and it has, therefore, to go into the question as to how many void or illegal votes have been counted in favour of the successful candidate and that cannot be done unless the Tribunal scrutinises the rejected ballot papers and the reasons for the rejection. If the Tribunal comes to the conclusion that the reasons for rejection of the votes of a particular candidate are wholly unsustainable, the benefit of those votes must be given to the concerned candidate, and to the detriment of his rival. This would materially affect the number of valid votes secured, and the result of the successful candidate. We have therefore no doubt that. Sections 98 and 100, and the Rules read together empower an Election Tribunal to scrutinise the reasons for the rejection, and also order recount of the valid votes in a proper case.
11. The Rule relating to the recount of votes lays down that the grounds for re-count should be mentioned even before the returning officer. That is obviously with a view to prevent a roving enquiry to make out a case for re-counting either before the returning officer, or at a later date before the Tribunal.
12. It is well settled that re-count is not granted as of right, but only on evidence of good grounds for believing that there has been a mistake on the part of the returning officer. That a re-count of votes can be ordered by an Election Tribunal if a prima facie case is made out, has been laid down in Bhim Sen v. Chattar Singh, 15 ELe LR 175 (All). Basavaiah v. Bachiah, 17 ELe LR 293 (Mys), Inayatullah Khan v. Biwanchand Mahaian, : AIR1959MP58 Achutha Menon v. Election Tribunal, Trichur, : AIR1961Ker186 and Kunju Raman v. Krishna Iyer, : AIR1961Ker188 . On a consideration of the authorises and the relevant provisions, one of us (Venkatesam J.) laid down in Ramalingam v. Kandu Kuri. Civil Revn. Petn. No. 1570 of 1962 (Andh Pra) that an Election Tribunal has jurisdiction to order re-count on a prima facie case being made out, which we approve.
13. Having regard to the fact that improper reception, refusal or rejection of a vote is a ground for declaring an election void by a Tribunal, we are of opinion that, on a parity of reasoning, an Election Tribunal can scrutinise the rejected ballot papers, and examine the reasons thereon. This is not a matter of right. Nor can it be invoked if the counting agent had not protested, though not in writing, before the Election Officer.
14. The decision in 15 Ele LR 175 (All) may be referred to in this context. It was observed in that case thus:
'Besides, one of the grounds on which an Election Petition can be allowed and which is mentioned in section 100(1)(d)(iii) is the improper reception of any vote which is void. It 'is thus the duty of the Election Tribunal to determine whether there had been any improper reception, refusal or rejection or reception of any vole which was void. The Tribunal has to see whether the votes cast in favour of a particular candidate were valid or not. It could, therefore go into the question as to how many void vote; had been counted in favour of the respondent'.
These observations also support our conclusion that for the purpose of satisfying that any valid votes were not improperly rejected, or void votes had been counted the Tribunal has the jurisdiction to scrutinise the rejected ballot papers, and examine the reasons.
15. The English Law on this point is stated in Halsbury's Laws of England, 3rd Edition, Volume 14, page 243, paragraph 426, thus:
'No parliamentary election and no return to Parliament may be questioned except by a petition termed a parliamentary election petition, complaining of an undue election or return, which is presented in accordance with the statutory provisions. The Representation of the People Act, 1949, does not define what is meant by an undue election or return, but a number of the provisions of the Act provide that a Parliamentary election may be avoided for corrupt or illegal practices or similar offences. The occurrence of these offences may form the grounds for the bringing of an election petition ........
It is the duty of the returning officer when the result of the poll has been ascertained forthwith to declare the candidate to whom the majority of votes has been given to be elected. If it is alleged that there has been a miscount, a petition may be brought demanding a re-count; if it is alleged that awing to certain votes having been wrongly allowed or disallowed the successful candidate did not have a majority of lawful votes, a petition may be brought demanding a scrutiny.'
Again at page 300, paragraph 543, it is observed:
'The object of a scrutiny is to ascertain by striking off votes or adding votes which candidate had the majority of lawful votes. The Representation of the People Act, 1949, does not expressly state that a scrutiny may be demanded nor, if it can be demanded, the grounds on which votes allowed or disallowed at an election may be disallowed or allowed at the scrutiny. The Act does, however, provide for certain votes being struck off on a scrutiny for correct or illegal practices and contains a provision, which contemplates, though it does not expressly authorise, the rejection of votes on a scrutiny on the ground of the voters being disqualified from voting. There is also statutory authority for the inspection of ballot papers for the purpose of an election petition.
It is also provided that, subject to the provisions of that Act and the rules thereunder, the principles, practice and rules on which committees of the House of Commons used to act in dealing with election petition must be observed, as far as may be, by the High Court and election court in the case of an election petition, and that the principles and rules with regard to scrutiny apply equally to all election petitions.
At page 306 paragraph 550, it is stated:
'A scrutiny may be demanded on the ground that votes at the count have been improperly accepted or rejected.' Again at page 308 paragraph 555 under the heading 'Inspection of Ballot Papers', it is observed: 'In the case of parliamentary elections the order may be made by the House of Commons or, if satisfied by evidence on oath that the order is required for the purpose of instituting or maintaining a prosecution for an offence in relation to ballot papers or for the purpose of an election petition, by the High Court or a county court. An order for me opening of a sealed packet of counterfoils and certificates or for the inspection of any counted ballot papers may also be made by an election court.'
16. Sri Ramachandra Reddy, the learned counsel for the appellant, also invited our attention to tie decision in The Stepney Division of the Borough of Tower Hamlets ('Election Petitions', by O' Malley and Henry Hardcastle, Vol. IV, 1893 Edn., page 34 at 50) for the position that scrutiny may be ordered by an Election Tribunal.
17. It is true that in England there is statutory provision for the inspection of ballot papers for the purpose of an election petition, and there is no such provision, in our country, but we do not feel, for the reasons already stated, that the position is in any way different.
18. Then remains the question, whether in the instant case the Tribunal was in error in not directing a scrutiny of the rejected ballot papers. The petitioner's contention is that a uniform principle was not followed by the returning officer in declaring the doubtful votes invalid, and wrongly rejected the votes cast in his favour. It may be pointed out at the outset that in the election petition there is no averment that there was any protest by the counting agent with regard to the rejection of any of the votes, apart from alleging that a number of votes were rejected by the election personnel without giving any consideration to the legality or otherwise of the same in an arbitrary manner when the respondent contended that the rules were strictly followed by the returning officer, and an opportunity was given to the petitioner's counting agents to state their objections, and yet no objection was raised by them, it was incumbent on the petitioner, by means of an additional pleading, if necessary, to have asserted that the counting agents objected to the rejection of some of the votes cast in favour of the petitioner, and, if so, what their approximate number was. But that was not done.
It does not appear that there was any prayer by the petitioner before the Tribunal that the rejected ballot papers may be scrutinised. The learned counsel on behalf of the respondent, who also appeared before the Tribunal, stated before us that there was no such request made to the Tribunal. The endorsement of the Tribunal on the ballot papers does not suggest that the petitioner requested for a scrutiny of the rejected ballot papers It is well established that a re-count cannot be ordered by a Tribunal except on prima facie proof of the petitioner's case, and the proceedings before the Tribunal cannot be converted into a forum for fishing out any possible defects regarding which no objection was raised before the Tribunal, or in the election petition and the same principle should apply in the case of scrutiny. In this view, no exception can be taken to the Tribunal not granting scrutiny.
19. In his evidence as P. W. 1 the petitioner deposed that his agents told him that even if the mark was put by a voter to great extent towards his symbol, it was being counted for the respondent, and that while folding the ballot paper if the impression of the mark put on his symbol fell on respondent's symbol, the vote was invalidated. In cross-examination he deposed that at' the time of counting no written complaint was made by him or his agents about incorrectly invalidating his votes, and that he could not give the number of votes incorrectly invalidated. He is therefore, unable to assert that the result of the election was materially affected by reason of the wrong rejection of the votes, as required by Section 100(1)(d) of the Act.
20. P. W. 9 who was one of the counting agents for the petitioner, deposed that votes were invalidated without showing them to the counting agents, and that on their asking the officers to show the reasons, they were asked to see on board and in newspapers, and not to ask them further. He did not state that he raised any protest to the wrongful invalidation of the votes. The evidence of P. W. 10 is to the effect that the counting agents protested that the invalidated votes were fit to be counted for P. W. 1, and could not be invalidated, that on their representation the returning officer looked and validated some voles for P. W. 1 and that if the mark was not put towards P. W. 1's symbol fully, the vote was invalidated. In cross-examination he stated that he did not go to the returning officer, nor could he give the name of the counting officer to whom he complained. The evidence of this witness must be rejected as it is contrary to the evidence of the other two witnesses, P. Ws. 1 and 9. Evidently, realising the lacuna, they made him (P. W. 10) depose that he raised an objection.
21. P. W. 11 stated that if the impression of the mark put by a voter fell on the other side at the time of folding the ballot paper, the vote was being invalidated, and that number of invalid votes of the respondent were taken as valid. He further deposed that about 150 votes of the respondent were taken as valid, while 60 or 70 votes of P. W. 1 were invalidated wrongly. In cross-examination he stated that the note prepared by him on the date of counting was not brought by him, that he did not give the note to P. W. 1, that he orally told the number of votes invalidated, and that he did not complain to the returning officer, but only told P. W. 1 when he saw him in the hall. Whether He gave a petition or not, he could not say. This evidence cannot be accepted for many reasons. He evidently prepared a note at the time counting was done, which would have thrown light on the truth of the petitioner's case, but it was not exhibited. We do not believe that he does not remember whether he presented a petition or not to the returning officer. This kind of evidence is absolutely of no value. Further, even if his evidence is to be accepted, his case is that it is only 60 or 70 votes of the petitioner that were invalidated. Thus the evidence on behalf of the petitioner in this respect has not impressed us, and it must be rejected.
22. The respondent examined as R. W. 1 deposed that the candidates were sitting near the R. D. O's (returning officer's) table, and were checking the invalidated votes, that the R. D. O. was measuring with scale to know the distance between the marks put by voters on ballot papers, and that no doubtful vote was invalidated improperly. His evidence has not been shaken in cross-examination. Very curiously it was not even suggested to him that any of the counting agents of the petitioner filed a petition or at least protested against the votes af the petitioner being invalidated.
23. On this evidence, we are of opinion, that there is no prima facie case made out by the petitioner for scrutiny of the rejected ballot papers. The petitioner seems to have focussed his attention before the Tribunal upon the wrong counting of the votes, rather than their wrong rejection. The order of the Tribunal also makes it clear that arguments were advanced only with respect to re-counting of valid votes. The Tribunal was not prepared to accept the grounds urged for re-count, and did not grant that request. The complaint before us now is not that re-counting was wrongly refused, but that there was no scrutiny. Even in the memorandum of appeal, the failure of the Tribunal, to order scrutiny is not alleged as one of the grounds. There is thus no basis or justification whatever for this complaint.
24. The appeal is devoid of merits, and is accordingly dismissed. The respondent will have his costs from the appellant which we fix at Rs. 100/-.